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Cuomo’s Slow-Mo Disaster

Andrew Cuomo is in serious trouble. Preet Bharara, the hard-charging U.S. attorney for the Southern District of New York, has turned up the heat on his administration’s alleged interference with an anti-corruption commission he appointed, and for the first time in the New York governor’s four-year tenure, he’s lost control of a situation. That’s an awful feeling for any politician, but especially for one who so prizes control, and who prides himself on playing political chess while his opponents play checkers. It’s the classic tale of a pol so consumed with avoiding a short-term image hit that he risked his long-term freedom. (I know the story well, because five years ago this week I lost control of a similar situation and ended up in prison for obstruction of justice.)

Let’s examine the peril of Cuomo’s predicament, which is far more serious than some believe. Few U.S. attorneys – particularly not the pugnacious Bharara – get into public pissing matches they intend to lose. And the stakes are high: Cuomo is one of the nation’s most powerful governors and heir to the national liberal mantle that his father, former governor Mario Cuomo, assumed with his poetic 1984 “Tale of Two Cities” Democratic National Convention speech. Decades later, leading Democrats continue to appropriate the elder Cuomo’s rhetoric; it was the basis for John Edwards 2008 presidential campaign as well as New York Mayor Bill de Blasio’s triumphant 2013 mayoral bid – not to mention Sen. Elizabeth Warren’s current stump speech. Based on that lineage and his “taming” of a formerly chaotic state capital by producing four on-time budgets, Cuomo the younger has been mentioned as a possible presidential candidate in 2016 (if Hillary Clinton doesn’t run) or 2020 (if Hillary runs and loses).

But despite the passage of timely balanced budgets, New York State government isn’t in great shape. Lately, more Albany politicians have gone on to prison than to higher office. Most of the cases involved bribery. In an attempt to reduce the influence of money in the New York capital – or, in the eyes of skeptics eying his $35 million war chest, appear as if he wanted to reduce said influence – Cuomo appointed the Moreland Commission to investigate politicians’ unethical and illegal behavior. To demonstrate the gravity of his endeavor, he had state Attorney General Eric Schneiderman officially designate commissioners as deputy attorneys general, thereby granting them law-enforcement powers. But once the commission got started, the trail led to some of Cuomo’s biggest funders.

Whoops.

The governor then faced a choice: endure any embarrassing revelations an inquiry may produce, or quash the inquiry and avoid short-term re-election campaign turbulence. Cuomo chose political expedience.

According to the New York Times and my conversations with people involved, Cuomo’s top aide Larry Schwartz called commissioners and commission staff multiple times and directed them not to subpoena major Cuomo backers. Federal witness-tampering law bars attempts to conceal documents or otherwise obstruct an official proceeding.

Soon thereafter, following passage of a watered-down ethics bill that gave Cuomo the political victory he felt he needed, the governor dissolved the commission. That’s when Bharara decided to pursue the tangled threads left by the commission’s abrupt disbandment.

Though Cuomo hunkered down when City and State and the New York Daily News ran smaller stories about his administration’s meddling, he denied any inappropriate interference after the recent Times expose. In concert with his public statement, another senior Cuomo aide, Joseph Percoco, allegedly called several commissioners to request public statements backing up Cuomo’s; Schwartz may have resisted making the calls this time around. Several supportive statements from commissioners magically appeared in media inboxes within minutes of each other. Percoco’s intervention may have violated federal obstruction of justice statutes, which prohibit attempts to “influence, obstruct, or impede, the due administration of justice.” Courts have expansively interpreted the “due administration of justice” clause to forbid any conduct interfering with a legal proceeding, which would encompass Bharara’s investigation.

To obtain a conviction under this clause, Bharara must prove that the defendant attempted to obstruct a pending federal proceeding. Cuomo’s acknowledgment of his staff’s communication with commissioners in advance of their supportive statements is important. Such communication is innocuous if it merely “correct(s) the record,” as Cuomo stated, but if it attempts to “corruptly persuade” commissioners by convincing them of an untrue story, then it constitutes obstruction of justice. Since contemporaneous records of commission and staff frustration at Cuomo’s attempts to thwart subpoenas exist, it will be difficult for him to argue that his aides were merely encouraging commissioners to make truthful statements. Even the fact that Percoco allegedly asked commissioners to communicate with him through private email messages rather than through their government accounts could be problematic, given 18 U.S.C. §1512(c), which prohibits attempts to conceal evidence during an investigation.

Perhaps Cuomo’s best defense is that commissioners’ testimonials were not sworn statements during legal proceedings, but merely incidental to the ongoing investigation. However, prosecution for obstructing justice under 18 U.S.C. §1512(b)(3) does not require proof that the defendant intended to obstruct a particular proceeding; federal judges have ruled it sufficient if the misleading information relating to a potential federal offense is likely to be transferred to a federal agent, a case Bharara could easily make following his seizure of all Moreland Commission material.

That Cuomo aide Percoco allegedly conducted this recent round of calls and Schwartz the earlier ones is consequential. Anyone familiar with the concept of the Prisoner’s Dilemma understands why. Instead of one top Cuomo aide in legal jeopardy, there are now two—and Bharara will doubtless seek to play them against each other, just like in the cop shows where the detectives split up the two suspects into separate interrogation rooms and tell each one, “Your buddy’s down the hall right now singing like a canary – you know that, right?”

But U.S. attorneys don’t get together and swap stories about the time they brought down a political staffer, and they don’t become U.S. attorneys general that way, either. Make no mistake: Bharara wants Cuomo’s scalp, and he has two people he can leverage to get it, if indeed the governor blessed the original thwarting of subpoenas, the more recent pressure on commissioners to make false statements backing up his denial of interference, or both.

Unfortunately for Cuomo, some obstruction statutes treat accomplices before the fact as principals, which means that he would be liable for anything Schwartz or Percoco did, provided he had advance knowledge. And given his legendary micromanagement – Cuomo is famous for producing groundswells of support at opportune junctures, whether on behalf of policy initiatives or his own career advancement – it’s hard to believe that he wasn’t at least aware of his aides’ actions. (As ex-governor David Paterson wryly observed amid mounting pressure to abandon his re-election bid and make way for then-Attorney General Cuomo, “Drumbeats remind me of orchestras, and orchestras remind me of orchestration.”)

If a sole aide is implicated in an effort to protect his boss, he’ll sometimes take the fall by saying that he acted independently, hoping that his boss – especially one about to easily re-elected to a powerful governorship – will appreciate his extraordinary loyalty and remember him post-prison. That option might be preferable to giving up one’s boss, an act that makes a high-level political adviser essentially unemployable by other politicians, lobbying firms and trade associations.

But if there’s a second aide who is implicated, and whose proximity to the principal affords knowledge that the principal approved – or even orchestrated – a cover-up, the calculation is very different. The first aide is no longer simply weighing the benefits of cooperation (a substantially reduced sentence) against the costs (the cognitive dissonance of betrayal and future reputational damage); he is now weighing the odds that the other aide might implicate him first, rendering his own information nearly useless. That’s the crux of the Prisoner’s Dilemma, and it’s why each player’s dominant strategy, according to the game theorists who use it, is to snitch before the other guy can.

Many, including New York Daily News columnist Bill Hammond, believe that Cuomo will walk. Hammond – and some criminal defense attorneys who agree with him – offer several reasons for this, most notably Bharara’s limited federal jurisdiction over this state investigation of state officers. However, legal precedent that prosecutors need not prove that an official federal proceeding was pending during the alleged offense, nor must they prove that the offender is aware of an investigation’s federal character. Indeed, according to holdings in New York’s own 2nd Circuit and in the neighboring 3rd Circuit, a defendant’s belief that a witness is reasonably likely to confer with federal authorities can be inferred from the nature of the offense and additional appropriate evidence; Bharara’s seizure of the Moreland Commission’s files, unambiguous public announcement of his intent to investigate and serial prosecutions of Albany legislators since taking his post would seem to provide sufficient evidence. In simpler terms: Ignorance of an investigation is no defense.

Hammond also seconds Cuomo’s argument that he can’t possibly interfere with his own commission, citing the precedent of pre-Depression-era Gov. Al Smith, who twice appointed himself the sole Moreland Commission member. But Smith did not deputize 34 commission members as deputy attorneys general with autonomous law enforcement power, which seems to render the comparison moot.

By Hammond’s account, prosecutors would be hard pressed to discredit repeated public statements from commissioners who have denied any improper interference or intimidation. Yet it would seem that a jury might weigh other evidence of interference – documents and, potentially, sworn statements buttressing that evidence – more heavily than public pronouncements made only after pressure from Cuomo aide Percoco, who even offered to draft the statements, according to multiple sources.

Lastly, Hammond argues that the commission’s eventual pursuit of many inquiries to which Cuomo objected indicates that any attempted Cuomo interference was ultimately ineffectual. That’s not unlike arguing for a terrorist’s innocence after the bombs he planted failed to detonate. The commissioners’ apparent steadfastness absolves the Cuomo administration of nothing.

As I wrote when New Jersey Gov. Chris Christie’s George Washington Bridge fiasco broke, federal prosecutors aren’t limited to investigating the matter that first attracted them to a target; probes often widen as new information emerges. Like wartime generals, federal prosecutors rarely have just one attack route. Just as they brought down Al Capone for income-tax evasion, not bribery, bootlegging or murder, they could end up indicting Christie for any number of other imbroglios about which troubling facts have emerged since the “Bridgegate” story broke. As someone who did time after a five-year, off-and-on inquiry that began with an examination into a 3x5 campaign postcard and ended in obstruction-of-justice charges due to discoveries from an unrelated investigation into a car bombing (!), I’m well-acquainted with the unforeseen places to which these inquiries can lead.

Five years ago, I was in Cuomo’s shoes. Like his, my troubles began with a stupid and reckless campaign decision to seek short-term gain before the cover-up spiraled out of my control, leading to my indictment. I remember the gut-punch when I learned that my best friend was wearing a wire, and the numbness as I told my parents that I was probably headed to prison. I wouldn’t wish that on my worst enemy.

Unfortunately, too many politicians forget that no political edge is worth their freedom. That’s why instead of sucking it up and taking a short-term political hit, we end up enmeshed in career- and freedom-threatening situations like this one. On the fortieth anniversary of President Nixon’s resignation, it is beyond cliché to say that it’s never the crime; it’s the cover-up. But it’s trite because it’s so true: Most of the original “crimes” are merely politically embarrassing, while the cover-ups are often criminal.

Someone once joked that God wished to have real power in his second life, and so became reincarnated as a U.S. attorney. Today, Andrew Cuomo is learning the truth behind that jest.

Jeff Smith (@JeffSmithMO) is a former Missouri state senator who spent 2010 in prison after pleading guilty to charges stemming from a campaign finance violation. Now an urban policy professor at the New School in New York City, he is completing a book about the politics of prison.